Minimum Competence - Daily Legal News Podcast
Minimum Competence
Legal News for Weds 2/14 - Fenwick and West 90% the Firm it Used to Be, Burford Capital Legal Blow, Corporate Diversity at Google and MSFT and Musk's Delaware Complaint

Legal News for Weds 2/14 - Fenwick and West 90% the Firm it Used to Be, Burford Capital Legal Blow, Corporate Diversity at Google and MSFT and Musk's Delaware Complaint

Fenwick & West's 10% layoffs, Burford Capital's legal blow, corporate diversity at Alphabet & Microsoft, and Musk's Delaware critique.

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A door labeled EXIT boarded shut, pencil sketch

This Day in Legal History: Congress Permits Voting Machines in Federal Elections

On this day in legal history, February 14, 1899, Congress marked a significant technological leap in the electoral process by approving the use of voting machines for federal elections. This decision opened a new chapter in how votes were cast and counted, moving away from the traditional paper ballots towards a more efficient and potentially more reliable mechanical method. The introduction of voting machines was seen as a revolutionary step forward, aimed at reducing fraud and errors that marred earlier elections. Like swapping a horse-drawn carriage for an automobile, this shift promised to propel the American electoral system into a new era of speed and precision, ensuring that the will of the people was registered and reported with unprecedented accuracy. This legislation not only reflected the innovative spirit of the age but also underscored a commitment to refining and advancing democratic processes.

In a Bloomberg Law exclusive, Fenwick & West is laying off nearly 10% of its attorneys and staff amid challenges in the tech-focused legal market. The decision, communicated by firm chair Richard Dickson, comes after an evaluation of both current and anticipated future demands, affecting just under 10% of the firm's professionals. Fenwick & West, a key player in Silicon Valley legal circles with clients like Apple, Oracle, and Meta Platforms, is responding to a downturn in transactional markets that has similarly impacted other tech-centric law firms such as Cooley and Goodwin Procter. The firm had ramped up hiring from 2020 to early 2022 to meet a surge in demand, but the subsequent slowdown in transactional activity has led to misalignment between the firm's talent levels and client needs. Despite the layoffs, legal recruiter Summer Eberhard remains cautiously optimistic about the future of corporate transactional practices. Affected employees will receive a minimum of 13 weeks of base pay and health benefits, with the longest-tenured staff eligible for up to 40 weeks of compensation.

 Fenwick & West Laying Off Nearly 10% of Attorneys, Staff (2)

A recent judicial decision has created significant ripples within the litigation financing sector, particularly impacting Burford Capital Ltd and its involvement in price-fixing lawsuits alongside plaintiff Sysco Corp. Magistrate Judge John F. Docherty ruled against the substitution of a Burford Capital affiliate as the plaintiff in pork and beef price-fixing cases, a move that challenged the firm's $140 million funding arrangement with Sysco. This decision underscores the tension between the objectives of litigation funders and the public policy against financial speculation on legal claims. The case has drawn attention to the broader litigation financing industry, valued at $13.5 billion, especially in the realm of antitrust claims, where the costs of litigation are notoriously high and outcomes uncertain.

The clash between Sysco and Burford has ignited debate over the influence of third-party funders in litigation and prompted calls for increased transparency within the industry. Critics, including the US Chamber of Commerce, argue that such funding arrangements can unduly influence the course and outcomes of legal proceedings, pushing for legislation that would require disclosure of financing agreements in legal cases. Meanwhile, proponents of litigation finance see the judge's decision as a specific instance rather than a systemic problem within the industry, emphasizing its role in enabling costly antitrust litigation to proceed.

The ruling, pending review, has not only put a spotlight on the practices and impacts of litigation finance but also sparked discussions on potential regulatory responses. As the industry navigates this challenging landscape, the case between Sysco and Burford may serve as a catalyst for reevaluating the balance between the needs of litigants for financial support and the integrity of the judicial process.

Judge’s Order Deals Blow to Sysco, Burford Capital in Pork Suits

Alphabet and Microsoft have diverged from the Nasdaq's recommended format for reporting board diversity, opting instead for a more visual representation using dots and check marks, while Tesla and Amazon have adhered more closely to the suggested templates. Since Nasdaq's rules requiring annual diversity disclosure took effect in 2022, companies listed on the exchange have adopted varied approaches to reporting, complicating direct comparisons between them. The regulations also mandate Nasdaq-listed companies to maintain diverse boards or explain the absence of diversity, a requirement that has withstood legal challenges from conservative groups. Despite the differences in reporting styles, experts like Amy Augustine of Boston Trust Walden Co. view the overall trend towards disclosure as progress, providing investors with crucial information previously unavailable. 

The use of symbols for disclosure, as seen in Alphabet and Microsoft's reports, is defended by some as offering more detail than Nasdaq's templates, though it presents challenges for analysis, particularly by computers. The Securities and Exchange Commission (SEC)'s move towards machine-readable data in proxy statements, such as requiring XBRL for pay-versus-performance data, contrasts with the less standardized board diversity information, which is not required to be XBRL-compliant. This discrepancy highlights the ongoing challenge of making diverse corporate disclosures more accessible for automated analysis. 

By way of very brief background XBRL, or eXtensible Business Reporting Language, is a global standard for digitally sharing financial and business information. Think of it as a translator, turning human-readable reports like financial statements into machine-readable data. This data is tagged with specific meanings, allowing computers to easily understand and analyze it. XBRL benefits everyone: companies save time and effort, investors gain deeper insights, and regulators get better data for analysis. It's revolutionizing the way business information is shared and used.

As the SEC contemplates broader board diversity disclosure requirements for all public companies, the landscape of corporate reporting on board composition is poised for further evolution. This movement reflects a growing recognition of the importance of diversity in corporate governance and the need for transparency to support investors' decision-making processes.

Alphabet, Microsoft Pivot From Nasdaq Diversity Reporting Format

Elon Musk has vocalized concerns that Delaware, a jurisdiction chosen by a majority of large public companies for incorporation due to its predictable legal system, is attempting to thwart companies from relocating, particularly in light of a court decision that invalidated his $56 billion Tesla compensation package. Musk's reaction, notably on social media, suggests an urge for companies to consider moving their incorporations out of Delaware, citing the state's alleged efforts to "lock the doors," as exemplified by the Tripadvisor case.

The TripAdvisor case revolves around the company's desire to relocate its incorporation from Delaware to Nevada, a move that reflects broader corporate discontent with Delaware's legal environment, despite its reputation for business-friendliness. TripAdvisor's move, endorsed primarily by chairman Greg Maffei despite opposition from a majority of minority shareholders, aims to benefit from Nevada's more lenient laws on self-dealing, where directors face fewer legal challenges. This case not only underscores the tension between corporate interests and shareholder protections but also signals a potential shift in the landscape of corporate registrations, with states like Nevada and Texas vying to attract businesses away from Delaware. The outcome of TripAdvisor's attempt to move could set a precedent affecting Tesla's and other companies' relocation plans, amidst ongoing debates about the balance between corporate governance and shareholder rights.

Delaware's legal framework, historically favored for its specialized Chancery Court and non-jury trials, has been perceived as facilitating rather than obstructing corporate moves to other states. Recent legislative adjustments in 2022 have simplified the process for companies wishing to reincorporate elsewhere, allowing such moves with majority shareholder approval, a shift from the previous requirement for unanimous consent. This modification ostensibly makes Delaware more accommodating for companies contemplating relocation.

However, the Delaware Court of Chancery's ongoing examination of reincorporation efforts, especially those potentially advantageous to controlling shareholders, introduces a layer of complexity. The Tripadvisor litigation highlights this scrutiny, with allegations that a planned move to Nevada could enable easier self-dealing by significant stakeholders, suggesting Delaware's courts may critically evaluate such transitions to ensure they do not undermine minority shareholder interests.

The situation with Tesla underscores a broader dialogue on corporate governance, shareholder rights, and the legal mechanisms in place to safeguard these interests. While Musk's significant influence at Tesla has been acknowledged by Delaware courts, the specific dynamics of Tesla's proposed shift to Texas—where legal protections differ from Nevada—might not directly align with the concerns raised in the Tripadvisor case.

The impending ruling in the Tripadvisor case is anticipated with interest, as it will offer further clarity on Delaware's stance towards companies seeking to relocate, especially those with intricate shareholder structures. This decision will be pivotal, potentially setting precedents on the degree of judicial oversight Delaware will exercise over such moves, and elucidating the balance between corporate autonomy and the protection of shareholder interests.

In summary, while Delaware has been characterized by Musk as obstructive, the state's legal amendments and judicial attitudes suggest a more nuanced approach, aiming to balance the flexibility for companies to reincorporate with the need to protect minority shareholders. The outcomes of ongoing legal deliberations, including the TripAdvisor and Tesla situations, will likely contribute significant insights into the evolving landscape of corporate governance and relocation.

Explainer: Did Delaware 'lock the doors' to stop companies from leaving, as Musk claims? | Reuters

Minimum Competence - Daily Legal News Podcast
Minimum Competence
The idea is that this podcast can accompany you on your commute home and will render you minimally competent on the major legal news stories of the day. The transcript is available in the form of a newsletter at